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18

The German juris-consult, Dr. Geffcken, speaking of the Congo Free State, says:

It is a very doubtful question whether the Congo State can rightfully claim the sovereignty over a territory of more than 2,000,000 square kilometers with 40,000,000 inhabitants, extending in part over regions entirely unexplored and certainly not yet reduced into possession, even though its right to those limits has been acknowledged by other states. These regions will only become the territory of the Congo State in proportion as they are occupied by it.

Westlake after quoting in the first volume of his treatise, International Law, the above passage of Geffcken, approves of it as sound doctrine in these words: “ This seems to us to have been a sound opinion.” 19

Oppenheim, Westlake's successor in the Whewell chair of International Law in Cambridge University, but a Continental jurist by birth and training, says:

It is agreed that discovery gives to the State in whose service it was made an inchoate title; “ acts as a temporary bar to occupation by another State” within such a period as is reasonably sufficient for effectively occupying the discovered territory. If such period lapses without any attempt by the discovering State to turn its inchoate title into a real title of occupation, such inchoate title perishes, and any other State can now acquire the territory by means of an effective occupation.

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Since an occupation is valid only if effective, it is obvious that the extent of an occupation ought only to reach over so much territory as is effectively occupied. In practice, however, the interested States have neither in the past nor in the present acted in conformity with such a rule; on the contrary, they have always tried to attribute to their Occupation a much wider area.

In truth, no general rule can be laid down beyond the above, that occupation reaches as far as it is effective.

Since by the Law of Nations in order that a Nation may appropriate a newly discovered land it must obtain possession of that land by an effective occupation, the recent annexation for the British

18 Heffter, ed. by Geffcken; Das Europäische Völkerrecht der Gegenwart, 8th ed., p. 159, note 3.

19 Westlake: International Law, Pt. I, p. 109.
20 Oppenheim: International Law, Vol. I, p. 278.

Empire of parts of East Antarctica, including the South Magnetic Pole, by the British expedition led with so much courage and foresight by Lieutenant (now Sir) E. H. Shackleton,21 does not give title to that newly discovered land in the absence of an actual occupation by British authorities any more than the annexation by Sverdrup for Norway of some of the land that he was the first to explore far to the north of the possessions of the Dominion of Canada.22

While there is no immediate prospect that man will be able to harness nature even in part in the Antarctic Continent; still, owing to continued discoveries in the world of physical sciences, he may some day be able, in order to draw upon the mineral deposits of that region, to establish himself on the ice and snow covered South Polar land. With such a possible future contingency, it would seein that it would be well to follow the rule adopted in the case of Spitzbergen. In that cluster of northern islands, a few hardy pioneers Americans, Norwegians, Danes, English, Russians and others — have established themselves for the summer or the winter season, two mining enterprises are now carried on there.24 But, unlike the case of Greenland, where Denmark, not only through long occupation by her citizens but also by the exercise of her sovereign authority, has made the land hers by effective possession, no nation has successfully asserted a claim to the possession of the Spitzbergen archipelago. On the contrary those islands have come to be regarded as a joint possession of all mankind. And with this liberal end in view, the Government of Norway has invited the Governments of the other nations, some of whose citizens have sought Spitzbergen as a place for commercial gain, to send delegates to a conference to be held at Christiania this year to arrange for the application of civil

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21 Shackleton: The Heart of the Antarctic Continent, Vol. I, p. 343, Vol. II, law and order to Spitzbergen.25 On general principles it would seem that both East and West Antarctica, two lands so much more difficult for man to occupy than Spitzbergen, should, following the liberal policy that has come to prevail in the case of Spitzbergen, become common possessions of all of the family of nations.

P: 181.

22 Axel Heiberg Land, King Oscar Land, Amund Ringnes Land and EllefRingnes Land, were the newly discovered lands that the Norwegian expedition commanded by Sverdrup annexed. Sverdrup: New Land. Vol. II. p. 449.

23 Greely: Handbook of Polar Discoveries, pp. 48–69, passim.

24 Scott: “Arctic Exploration and International Law," THE AMERICAN JOURNAL OF INTERNATIONA Law, October, 1909, p. 941.

THOMAS WILLING Balch.

25 Ibid, p. 941.

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THE CRETAN QUESTION The island of Minos, which at one time is supposed to have had the great honor of giving hospitality to Zeus or Jupiter during his infancy, thereby linking its name with that of celestial beings, seems to have been predestined by the Mæræ or Fates to be the perennial apple of discord between the descendants of ‘Europa’ the wife of the Supreme Olympian God.

There is so much confusion about its present condition and so many perplexing questions as to its actual status, that the diplomats in whose hands its destinies are intrusted, might possibly again need the clue or thread of Ariadne to find their way out of this Cretan labyrinth of modern times.

Conquered and reconquered at various times by alien nations, kept in bondage for centuries by the mercenary and unscrupulous Venetians, and held in serfdom by religious fanatics, such as Arabs and Turks, the former impressing upon them the necessity of union with the See of Rome as the means both for their earthly and heavenly salvation; the latter pointing the faith of Mohammed, in order to attain the same end, but with far inore brilliant results; oppressed both by the disciples of Christ and those of Mohammed, compelled to abjure their religion, at one time for the sake of the one, at another for that of the other faith, the Cretans are, what they were three thousand years ago, a branch of the Hellenic nation, and their island, the pearl of the Mediterranean, purely a Greek island, having never divested itself of its Hellenic soul.

Hence the main reason for its troubles; hence the sufferings of its inhabitants for so many centuries; hence its political entanglements.

Europe, having at the time of the creation of the Hellenic Kingdom, made the initial mistake of leaving Crete under the Turkish voke notwithstanding the participation of the islanders in the war of Greek independence, is now trying, half-hearted, to repair the wrong done by its statesmen at that time.

Nor was the island profitable to the Ottoman Empire itself, on account of the frequent risings and insurrections of the people, taxing heavily on the already impoverished Turkish exchequer, not to say anything of the losses and sufferings undergone by the Cretans and Turks during the long struggle of independence on one side and supremacy on the other side.

After the insurrection of 1863-1866, which rising had evoked so much enthusiasm both in Europe and in the United States, the Cretans hoped for a moment that their ideal would be realized, on account of the inclination of the then reigning Sultan to abandon " the ungrateful infidels,” but unfortunately Great Britain and Napoleon III. vetoed the plan, leaving Crete again in bondage, with a grant of an illusory autonomy.

During the Russo-Turkish war of 1876-1878 the islanders raised again the standard of rebellion, this time with great success. Therefore the Congress of Berlin of 1878 taking notice of that fact, inserted a clause in the treaty bearing the name of that city, dealing with the autonomous regime of the island (which, it should be noted, was to be extended to the European provinces of Turkey), but the Sultan set at rest both plans by instituting a military government in Crete and shelving the other entirely, much to the merriment of the European chancelleries.

This naturally gave rise to further troubles and rebellion in the island and to repressive measures by the Porte accompanied by massacres on " a small scale," culminating in 1897 in the forcible intervention of Greece in the island, which enterprise met the disapproval of the European Concert and particularly of Emperor William of Germany, the then friend of the Sultan Hamid.

Therefore in a collective note, the six great Powers of Europe informed Greece that “ Crete could not at present be annexed to the Hellenic Kingdom," but that they would confer on the island

an absolutely effective autonomous regime insuring for it a separate government under the high suzerainty of the Sultan.”

On the occupation of the island or of its sea-coast towns by the international troops, which was done with the consent of Turkey, a proclamation referring to the grant of autonomy was issued by the

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